News

Trial on Oak Creek native's discrimination suit against FBI underway

Alexandria, Va. — In what he called "an insanely huge milestone," the trial on an Oak Creek native's claim that he was denied a job as an FBI special agent because of a disability began Monday in a federal courtroom in Virginia.

Much of the first day was consumed with jury selection, which ended with a panel of four men and four women.

The only witness of the day, called by Justin Slaby's attorneys, was James Yoder, a 15-year medical officer at FBI headquarters in Washington.

In May 2010, Yoder performed the FBI's only risk assessment of Slaby — known as a "fit for duty" examination — before Slaby went to the FBI training academy. He said only 2% to 4% of special agent applicants are denied, while a slightly broader pool falls into a slightly elevated risk category.

"He was one of those gray-zone area cases," Yoder said. "Our conclusion was that he deserved an opportunity."

Asked directly by Slaby's attorney, John Griffin, if he would not have declared Slaby fit for duty if he believed he posed a significant risk to himself or another agent, Yoder answered, "That's correct."

Government attorneys did not have time to cross-examine Yoder on Monday.

Slaby was Army Ranger

A former Army Ranger, Slaby served three tours in Iraq and Afghanistan and was preparing for a fourth when he lost the hand in a training accident. He is still employed by the Bureau, but as a support staff member on a hostage rescue team. He lives in Stafford, Va., with his wife and three young children.

The case has drawn national attention from both the law enforcement community and advocates for the disabled. Slaby was the first trainee at the FBI academy with a prosthetic hand.

"This is such an insanely huge milestone, I'm just trying to keep my emotions inside," Slaby said Monday outside the courtroom. "This whole process has been a weight to carry, and now it's at the end. Today is definitely a day unlike any other."

Slaby filed his lawsuit in July 2012 and said he never expected it would go to trial.

"I thought there was no way it would reach this level and the government would want this out there," he said. "But we are where we are."

Carlson won't testify

Slaby's team was dealt an early setback Monday when U.S. District Court Judge Anthony Trenga ruled that the former head of Milwaukee's FBI office, Teresa Carlson, cannot testify in the trial. Carlson has been transferred to Washington, D.C., and is under investigation for attempting to sway the testimony of an agent who supported Slaby — saying he should "come down on the side of the government."

Slaby's attorneys had subpoenaed Carlson and were planning to call her to testify on Wednesday, but Trenga ruled that Carlson had no direct involvement in Slaby's case. Trenga also ruled that Slaby's attorneys can still submit to him in writing their case against Carlson, but that the jury cannot hear or see it.

Lawyer defends agency

Earlier, during opening arguments, U.S. attorney Sosun Bae said FBI officials did everything possible to accommodate Slaby, gave him tips to help with his training, and would still welcome him as a special agent if prosthetic technology improves sufficiently for him to pass firearm training.

"It is the duty of the FBI's training academy to ensure that all special agents can perform all tasks required of them," Bae told the jury. "Justin Slaby simply could not meet that standard that every other single trainee must meet."

Griffin told quite a different story, arguing that Slaby was subjected to excessive scrutiny because of his disability, and that FBI trainers effectively overruled Yoder's assessment when they dismissed him from the training academy six weeks into the 21-week program. He said the Bureau will be unable to prove that Slaby presented a risk sufficient to prevent him from becoming a special agent.

"All Justin Slaby asked the FBI to do was to treat him fairly," Griffin said. "If a person has a disability but they're qualified, they're entitled to be judged on their ability to perform their job. This is a case of two FBIs — an FBI inside of the FBI. One is the good FBI that hired Justin Slaby. The other is the trainers who hired lawyers before they even met him, to prevent him from becoming an agent."

Slaby's attorneys plan to call more witnesses Tuesday, mostly current and former FBI agents who have been declared fit for duty despite disabilities.